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Abreu v. Braga

January 26, 2010

ARMANDO ABREU, PLAINTIFF,
v.
F. BRAGA, ET AL., DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel. He commenced this action on October 24, 2008, in the Amador County Superior Court. On March 18, 2009, defendants removed it to this court and requested that the court screen plaintiff's complaint pursuant to 28 U.S.C. § 1915A and grant defendants thirty days from the date of the court's screening order to file a response to the complaint. Plaintiff has filed several motions to remand, a motion to amend the complaint, and a motion to supplement the complaint.

I. Motions to Remand

A defendant may remove to the appropriate federal court "any civil action brought in a State court of which the district courts of the United States have original jurisdiction . . . ." 28 U.S.C. § 1441(a). The district courts have original jurisdiction over cases "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Once the case is removed, the district court has original jurisdiction over the claims arising under federal law, and may exercise supplemental jurisdiction over the accompanying state law claims so long as those claims constitute "other claims that . . . form part of the same case or controversy . . . ." 28 U.S.C. § 1367(a). Here, in addition to various state law claims, plaintiff alleges violations of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights under the United States Constitution. Therefore, this court has original jurisdiction over the complaint and removal was proper. Accordingly, plaintiff's contention that this court lacks subject matter over this action has no merit. See Dckt. No. 4 at 6; Docket No. 12 at 1-2. Furthermore, plaintiff's assertion that he has been deemed a three-striker under the federal in forma pauperis statute, 28 U.S.C. 1915(g), is not an appropriate basis for remand. See Dckt. No. 3 at 11-12.

II. Motions to Amend and Supplement the Complaint

On April 16, 2009, plaintiff requested leave to file an "amended civil rights state-court-complaint." Along with his one-page request, plaintiff attached 125 pages of exhibits. Thereafter, on May 26, 2009, plaintiff filed a motion to supplement the complaint in this action, to add the Attorney General of the State of California as a defendant. At this stage of the proceedings, plaintiff may amend his pleading once as a matter of course and does not need leave of court to do so. See Fed. R. Civ. P 15(a). His motions are therefore denied as unnecessary. An amended complaint, however, "shall be retyped and filed so that it is complete in itself without reference to the prior or superseded pleading." L. R. 220. Neither of plaintiff's motions include a copy of an amended complaint that is complete in itself without reference to the October 24, 2008 complaint, and therefore, this action proceeds on the original complaint.

III. Screening Pursuant to 28 U.S.C. 1915A

Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b).

A district court must construe a pro se pleading "liberally" to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). While detailed factual allegations are not required, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570).

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Id. (citations and quotation marks omitted). Although legal conclusions can provide the framework of a complaint, they must be supported by factual allegations, and are not entitled to the assumption of truth. Id. at 1950.

The Civil Rights Act under which this action was filed provides: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983. An individual defendant is not liable on a civil rights claim unless the facts establish the defendant's personal involvement in the constitutional deprivation or a causal connection between the defendant's wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). To state a claim against any individual defendant, the plaintiff must allege facts showing that the individual defendant participated in or directed the alleged violation, or knew of the violation and failed to act to prevent it. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), cert. denied, 525 U.S. 1154 (1999) ("A plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights."); Taylor, 880 F.2d at 1045.

The court has reviewed plaintiff's complaint pursuant to 28 U.S.C. § 1915A and finds that it states cognizable claims against defendants Braga, Diamond and Campbell. The complaint does not, however, state a cognizable claim against defendant California Department of Corrections and Rehabilitation (CDCR), nor does it state cognizable Fifth Amendment, Sixth Amendment, or equal protection claims.

Plaintiff seeks monetary damages against CDCR on the ground that it failed to properly supervise the other named defendants. However, state agencies, such as the CDCR, are not "persons" within the meaning of section 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989); see also Allison v. California Adult Authority, 419 F.2d 822, 823 (9th Cir. 1969). Further, they are entitled to absolute immunity from monetary damages actions under the Eleventh Amendment. Quern v. Jordan, 440 U.S. 332, 337-45 (1979); see also Aholelei v. Dep't of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) ("The ...


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